AMENDMENT TO
EXCLUSIVE DISTRIBUTOR AGREEMENT
THIS AMENDMENT is entered into this 21st day of November, 2000 by and
between Nassda Corporation located at 625 Ellis Street, Suite 206,
Mountain View, CA 94043 ("Company") and Marubeni Solutions Corporation
located at Higashi 1-26-20, Shibuya-ku, Tokyo 150-0011, Japan
("Distributor").
WHEREAS, Company and Distributor entered into an Exclusive Distributor
Agreement dated October 1, 1999 ("Distributor Agreement"), under which
Distributor distributes certain software products produced by Company
("Software");
AND WHEREAS, Company and Distributor desire to amend certain aspects of
Distributor Agreement;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Effective Date
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This Amendment shall be effective on November 21, 2000, and shall apply to
Software ordered by Distributor to Company on or after such time.
2. Change of Transactions
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To accelerate smooth transactions between Company and Distributor and
expand the distribution of Software, the parties hereto agree to amend the
transactions under Distributor Agreement as "Licensing Distributor to
sub-license customers to use Software" to "sales of copies of Software
packaged."
3. Amendments
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3.1 The first sentence of Section 4.1 of Distributor Agreement is hereby
removed and replaced with the following:
"Company shall sell and Distributor shall purchase Software in accordance
with Purchase Notes submitted to Company."
3.2 Section 4.4 of Distributor Agreement is hereby removed and replaced with
the following:
"Company shall be responsible for delivery of Software contained in media
(e.g. floppy disc or magnetic tape) to Distributor, which shall be
completed upon Distributor's receipt thereof at Distributor's address as
first written above or any other place in Territory designated by
Distributor. [***] shall bear all charges, freight or otherwise for such
delivery. To secure smooth export and import transactions, Distributor may
designate the forwarder for such delivery. The benefits and burdens of, and
risk of loss and damage to, Software sold to Distributor shall remain with
Company until the Software is received by Distributor as provided herein."
[***] Confidential treatment requested pursuant to a request for
confidential treatment filed with the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Commission.
3.3 Section 5 of Distributor Agreement is hereby removed and replaced with the
following:
"In light of protecting certain proprietary rights of Software,
Distributor shall execute with its customer an End-User Agreement which
meets the requirements set forth in Schedule C. Distributor shall keep the
records up-to-date regarding the customers list and shall make such records
available to Company at Distributor's premises during regular business
hours."
3.4 The first sentence of Section 6.1 of Distributor Agreement is hereby
removed and replaced with the following:
"Company warrants that it is the exclusive owner of the intellectual
property rights of, or has the right to distribute, Software and related
documentation."
3.5 Section 10 of Distributor Agreement is hereby removed and thereafter remain
in no effect.
3.6 The Schedule C of Distributor Agreement is hereby removed and replaced with
APPENDIX attached to this Amendment.
3.7 To avoid any misunderstanding, the words in the following sections of
Distributor Agreement are hereby replaced as follows:
(a) "Title to Software" as section heading of Section 7.1 with "Rights to
Software".
(b) "Title to and ownership" in the first line of Section 7.1 with "The
intellectual property rights".
(c) "title or ownership" in third line of Section 7.1 with "intellectual
property rights".
(d) "sub-licensing" in fifth line of Section 8 with "distribution".
(e) "licensing" in third and seventh lines of Section 11.3 with
"distribution".
4. Surviving Provisions
--------------------
Except as expressly provided herein, all terms and conditions of
Distributor Agreement shall remain in effect and full force.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their duly authorized officers or representatives on the day and
year first written above.
Nassda Corporation Marubeni Solutions Corporation
/s/ [***] /s/ [***]
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By: [***] By: [***]
--------------------- ---------------------
Its: [***] Its: [***]
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Date: 11/21/00 Date: 11/30/2000
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[***] Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
APPENDIX of AMENDMENT
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SCHEDULE C
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TERMS OF END-USER AGREEMENT
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Distributor's End-User Agreement shall provide, among other things, that:
(a) The End-User Agreement shall be non-exclusive, non-transferable and, in
principle, (unless terminated in accordance with the provisions set forth
in the End-User Agreement) perpetual;
(b) Each Software shall be for use only on a single, designated CPU (for
Node-Lock) or on the designated network with authorized number of users
(for Floating);
(c) The customer shall not make copies of Software, except for use on the
designated CPU or for back-up or archival purposes;
(d) Company shall retain copyright and any other proprietary rights in and to
Software, including any and all copies, modifications, translations and
other derivative works that duplicate or are based on Software;
(e) The customer shall limit use of and access to Software to such of
customer's employees or contractual persons as are required to be involved
in the operation and maintenance thereof, provided that the customer shall
take all reasonable actions as may be necessary to preserve the
confidentiality of the Software and prevent transfer or disclosure thereof
to others;
(f) The customer shall not remove or modify any copyright or proprietary rights
notice included in or on Software and shall reproduce all such notices on
any copies of Software or portions thereof, in any form, which customer may
make;
(g) The customer shall not decompile, disassemble, or attempt in any way to
reverse engineer Software;
(h) The customer shall not directly or indirectly export or re-export any
Software without first obtaining Distributor's written approval and any
necessary United States and/or Japanese export license; and
(i) In addition to the terms and conditions set forth in this Schedule C,
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Distributor may include any other terms and conditions in the End-User
Agreement, provided that such terms and conditions: (i-1) are, except to
the extent required by any applicable law in the Territory, consistent with
the terms and conditions set forth in any subsections above; (i-2) do not
expand Company's obligations beyond those set forth in the body of this
Agreement; and (i-3) do not authorize Distributor to incur any liabilities,
obligations or commitments on behalf of Company.